Court-Connected Mediation and Minorities

Vol. 20No. 4

By
Sharon Press

In 1988, Florida and Texas became the first states to adopt legislation that authorized trial judges to order any civil case to mediation, subject to very few restrictions and limitations. After years of experimentation with the use of alternative dispute mechanisms in a variety of contexts, a new era had begun. Over the past 25 years, court-connected mediation has grown exponentially.

Starting with the early experimental days, mediation’s potential was great. It would enhance self-determination and mutual problem-solving, and it would be less costly and quicker than traditional adjudicatory processes. Mediation would provide a more humane process, one in which parties could be heard, maintain their dignity and make their own decisions.

In the past two and a half decades, court-connected mediation has encountered a range of critics. Many of the promises described above were not specific to court-connected mediation; in fact, the advent of court-ordered mediation led many scholars to question whether mediation’s full potential could ever be realized in a court setting, where efficiency interests would likely prevail. Would litigation become more humane, or would mediation become more like adjudication?

Many observers have also wondered about the impact of these processes on minorities.[1] While questions remain about the pros and cons of court-ordered mediation generally, the focus of this article will be an exploration of whether progress has been made in the last 25 years regarding minorities’ experience, as both mediators and parties, in court-connected mediation.

Minority Mediators

The modern court-connected mediation movement can trace its roots to community mediation. One impetus behind the growth of community mediation was the belief that the traditional criminal justice system was insensitive to the conflicts facing minorities. At the time many of the first community programs were founded, the vast majority of judges, lawyers and court personnel were Caucasian, making the system a less than friendly place for members of minority groups to resolve their conflicts. In addition, the traditional system lacked the time, resources, expertise or inclination to address issues that might be specific to such conflicts.

Against this backdrop, community mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. The model of recruiting and training people from the community, people who looked like their neighbors and could understand local conflicts, led to a system in which program administrators and mediators often reflected the racial and ethnic diversity of the people they served. As they experimented with ways to provide value to their communities, these programs also were among the first to accept court-connected civil cases.

Over the years, court-connected mediation matured and evolved from primarily criminal justice system alternative or diversion programs to an avenue for addressing civil matters. In addition to the shift from quasi-criminal to civil cases, programs saw the amounts in disputes considered appropriate for mediation increase dramatically, from those in “minor” disputes to no upward dollar limit. These changes were accompanied by an increased professionalization of the field and an expectation among many, if not most, that mediators would be compensated. As the court-connected programs expanded in their breadth and depth, the commitment to mediator diversity waned. The qualifications for mediators, particularly for complex cases, were often tied to professional licensure or prior judicial experience; given that the legal profession is not yet ethnically and racially representative of the population (and only now becoming closer to representing gender equality),[2] it is no surprise that these qualifications had the unintended consequences of wiping out much of the mediator diversity in the field. This problem persists even as various organizations have attempted to address it because attorneys (not the parties) typically select the mediator and the mediators with the most experience are disproportionally Caucasian, male and older than the population. Community mediation programs, which rely on volunteers, continue to have the most diverse pool of mediators, but they have been overshadowed by the “professionalization” of the field.

Minorities as Parties to Mediation

In addition to asking questions about the diminishing diversity among practitioners, critics have raised concerns about minorities’ experience as parties in mediation, focusing on four basic areas:

Quantitatively Inferior Results for Minorities

A New Mexico study done in the early 1990s is one of the few empirical research projects designed to investigate how minorities perform in mediation.[3] In this study, which involved “Hispanos,” people descended from the Spanish colonials who lived in New Mexico before the annexation of that area by the United States in 1848, the quantitative data uncovered the following:

Minority claimants consistently received less money and minority respondents consistently paid more than non-minorities. This was true for both adjudication and mediation; however, the result was more pronounced for mediated cases than adjudicated cases.

In adjudication, monetary outcomes were primarily related to case characteristics (e.g., whether the claimant was a lawyer or was represented by one).

In mediation, ethnicity remained a significant predictor of monetary outcome but the effect was eliminated when both of the co-mediators were minorities.

This data is especially important because the empirical study was designed specifically to assess court-connected mediation. In addition to the findings listed above, the data revealed the following:

Overall, parties who were sued and went to mediation were more satisfied with the outcome in mediation than in adjudication.

Overall, claimants in adjudication and mediation were equally satisfied procedurally but claimants in mediation reported the outcome as fairer and less biased than claimants in adjudication. In fact, minority claimants and respondents were consistently more positive about mediation than they were about adjudication on all satisfaction and fairness measures – despite achieving lower monetary awards as claimants and paying more as respondents in mediation.

This study highlights that there are other possible measures of satisfaction rather than just how much money exchanges hands, including issues of relationships, respect and morality – things that rarely are valued in a traditional court setting. Another possibility is that it reflects parties’ interest in receiving procedural justice – specifically that the procedures by which decisions are made are fair and that the parties feel they have been treated with respect and dignity. While procedural justice is an important value of the traditional adjudicatory system, absent sufficient time and resources, parties often feel that they have not been given sufficient voice or received serious consideration in traditional court settings – particularly in small claims court, where this New Mexico study took place. A good mediation process can provide the kind of procedural justice that the parties crave.

More Intrusive

The concerns that informal dispute resolution processes are inappropriately intrusive as compared to litigation were best articulated by Richard Abel and Richard Hofrichter[4] in the early 1980s. Their concerns were two-fold: disputes that were traditionally resolved (or not) within the community were brought within the realm of “state control” via their inclusion in community mediation centers, and the issues discussed in these disputes were expanded as participants were invited to air their feelings and reveal details about their personal lives.

In the context of court-connected mediation, the notion that a dispute that was not previously under “state control” now is under such control does not apply because by definition, the dispute has already been brought to the court’s attention. Further, it is not clear whether the concerns about an expanded view of the issues applies to court-connected mediation, given that depending on the orientation of the mediator, the process may in fact be limited to the four corners of the legal dispute.

But even if one accepts that in some court-connected mediations the mediator will encourage an expansion beyond the legal issues to give voice to emotion and personal impact, one has to question whether this really is problematic. Many people, in fact, believe that such an expansion is a good thing and that mediation is not fulfilling its true potential if parties are limited to discussing legal issues. In the context of minority populations, this may be even more important.

Most people would agree that today’s dominant US culture is highly individualistic with a short-term focus. For those who are more collective in their world view and more comfortable considering long-term implications, having a forum in which they are invited to consider and express the broad implications of a dispute would be both more comfortable and appropriate. The New Mexico study described above appears to support that an expanded discussion of issues may indeed be viewed by minorities as a net positive.

Mediator Neutrality Not Attainable, and Even if Attained, Problematic for Minorities

An additional critique focuses on the concept of neutrality. There are two facets to this critique – the first is that neutrality is not attainable.[5] According to this view, the assumption that mediator neutrality can be achieved misses the reality that mediators bring to the table their own “social class, ethnic heritage and professional and political ideologies.”

The second facet is that even if a mediator could behave in a neutral manner, neutrality in mediation is problematic for minorities because mediator neutrality perpetuates “patterns of disparate treatment, experience, and outcomes” and acts as a “conduit for legitimizing power structures” that favor the dominant population.[6]

The Model Standards of Conduct for Mediators adopted by the American Bar Association, the American Arbitration Association and the Association for Conflict Resolution in 2005 specifically address neutrality issues in the following ways:

Standard II B 1 Impartiality – “A mediator should not act with partiality or prejudice based on any participants’ personal characteristics, background, values and beliefs…”

Standard IV A Competence – “cultural understandings” is specifically identified as what is “often necessary for mediator competence.”

Standard IX Advancement of Mediation Practice – encourages mediator to “act in a manner that advances the practice of mediation” and the first item on the list of ways a mediator may do so is by “fostering diversity in the field of mediation.”

The more relevant response to the first prong of this critique is to affirm that we have too few qualified mediators who represent the diversity of our communities — whether they are neighborhoods, families, schools, workplaces or nations. In other words, it is our responsibility to implement, and encourage the implementation of, the aspirational words of Standard IX. A diverse pool of mediators will prevent minorities from being at a disadvantage at a mediation by ensuring there are options for mediator selection that better represent the social identities, experience and worldviews of all of the parties involved. This phenomenon is highlighted in the New Mexico study, which found that the ethnicity of the parties was a predictor of the monetary outcome in mediation except when the co-mediators were also minorities.

In response to the second prong of the neutrality critique, additional research is needed to determine both the validity of this assertion and how we think about what it means to be neutral. For example, I believe that by structuring a process so that all parties have an opportunity to give voice to their concerns, the mediator supports neutrality and does not violate that concept. As the field matures, these types of discussions are critical.

Social Change Inhibited

The final critique contends that mediation’s focus on the future and on shifting parties from assessing blame for past “wrongs” inhibits social change. In addition, if cases are resolved short of trial, there will be limited ability to set or revisit precedents. A corollary to this concern is that by emphasizing cooperation, mediation denies the existence of some conflicts and transforms others into “simple misunderstandings.” This critique concludes that the more relational (collectivist) party will be disadvantaged in mediation as a result.

When one compares the mediation process to the traditional adjudicatory process, this critique loses some of its persuasiveness. Given that upwards of 96% to 98% of all cases filed are not resolved through a trial, it would be more accurate to compare court-connected mediation to settlement. When parties are represented, settlement discussions typically take place between the attorneys; often the named parties are not involved until there is a settlement offer to accept or reject. It is hard to imagine how that process is fulfilling to any party, especially someone who is collectivist or relational in thinking. Today, a more accurate critique would be to focus on how we can improve both the traditional adjudicatory system and the court-connected mediation process to provide voice for those who generally are not heard. Shifting from making referrals to mediation mandatory to making those referrals voluntary or making mediation mandatory only upon request of the plaintiff would also remove much of the heat behind this critique, because it is hard to argue against individuals being able to decide how they wish to resolve their concerns.

Recommendations

After 25 years of court-connected mediation experience and research, we have identified areas of concern. It is now time to implement changes to improve the next 25 years for minority mediators and parties.

Data Collection, Research and Evaluation

Albert Einstein is often credited as saying: “Not everything that counts can be counted and not everything that can be counted counts.” This certainly holds true in the context of mediation. Satisfaction and impact on relationships are difficult to assess and therefore count, but they are critically important measures. On the other hand, the number of mediations that result in settlement is easy to count but does not provide an accurate picture of whether procedural justice was achieved.

As advocates for mediation, we have a responsibility to see that both the traditional adjudicatory process and the mediation process are as strong and respectful as they can be. We should work for adequate funding for both processes and for adequate funding to conduct research and evaluations. Comparisons should be made between what actually happens in the traditional processes and in mediation, not merely the idealized or flawed versions of either.

In particular we should determine whether the results of the 1990-1991 New Mexico study are replicable involving other minority populations today. Minority populations are not all the same, but do their differences yield different results? The study also used small claims cases as the data source. Would the results be the same in family cases or large civil cases? Professional associations should be doing more to encourage research in this area, including research grants and task force projects.

Increase Mediator Diversity

The New Mexico study, as well as other small studies and a great deal of anecdotal evidence, suggest that the ethnic identity of the mediator matters. This, in combination with the shift away from minority mediators in court-connected programs, highlights an area where changes are necessary.

The Florida Supreme Court took a step toward addressing mediator diversity in 2007, when it removed the requirement that complex civil case mediators be Florida attorneys who have at least five years of practice or retired judges from any US jurisdiction. While this modification was an important symbolic step, the bulk of civil mediations are still mediated by male Caucasian attorneys. As long as attorneys continue to choose the mediator for their cases, they will continue to select from the more limited pool of experienced, non-diverse mediators. To effectuate a real change would require more dramatic rule revisions that have the potential of interfering with the important concept of self-determination.

Professional associations and private providers of dispute resolution services should devote resources to operationalizing Model Standard for Mediators IX, and there must be a plan to develop meaningful opportunities for mediators who come from diverse backgrounds.

Training

Much can be accomplished through both formal and informal training opportunities. Many court-connected programs require that their mediators complete initial training. At a minimum, this training should include learning objectives that relate to cultural competence and encourage consideration of the issues raised in this article. Continuing education programs for mediators should also highlight diversity and cultural competence, so that as mediators become more experienced, they continue to consider these issues. In addition to these more formal training opportunities, court-connected programs should encourage informal interaction between mediators in the form of discussion groups and luncheons. Particularly if a program is successful in diversifying its ranks, these types of experiences will go a long way to educate mediators.

Access to Information

Program administrators and mediators need to be mindful of what information is shared about the mediation process and procedures and how that information is shared. For example, in what languages is information about the process and procedure available to participants – and at what comprehension level? How is the information distributed? Is the information merely provided online or is there a knowledgeable person available to talk to participants? Is there clear information provided for a party who needs the services of an interpreter? Is the cost of an interpreter covered by the program, or must the party pay himself? Even if someone speaks English sufficiently in an informal setting, she may feel more comfortable having an interpreter in a formal court-related process that will affect her rights and obligations. If the parties reach an agreement in mediation, do mediators merely give the agreement to the parties to read over themselves, or are the mediators instructed to read the agreement out loud, to ensure that everyone understands what they are agreeing to?

Conclusion

Twenty-five years later, has any progress been made? I believe the answer is a qualified yes. The Association for Conflict Resolution, the ABA Section of Dispute Resolution, the American Arbitration Association and the International Institute for Conflict Prevention & Resolution (CPR) all have undertaken initiatives to address these issues, but it is not enough. There is still much to be done. Understanding the issues is the first step, but it cannot be the last.

Sharon Pressis Professor of Law and Director of the Dispute Resolution Institute at Hamline University. Previously, she served for 18 years as director of the Florida Dispute Resolution Center, where she was responsible for the ADR programs associated with the state courts. She can be reached at spress01@hamline.edu.

[1] For purposes of this article, “court-connected” is the term I will use to refer to mediations in which a case has been filed with a court and a judge either orders the parties to participate in a mediation or strongly encourages them to do so. The mediators may be court staff, volunteers or private practitioners. I also will use the broad definition of “minority” provided in Merriam Webster’s dictionary: “a part of a population differing from others in some characteristics and often subjected to differential treatment.” While I believe there are differences between and among minority groups, the research data to date is too limited to empirically prove this.

[3] From 1990 to 1991, Michelle Hermann, Gary LaFree, Christine Rack, and Mary Beth West conducted a study in Bernalillo County with data from the Metropolitan Court in Albuquerque, New Mexico. The results were published in several different articles including: Gary LaFree & Christine Rack, The Effects of Participants’ Ethnicity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases, 30 Law & Soc’y Rev. 767 (1996) and Michelle Hermann, Gary LaFree, Christine Rack, & Mary Beth West, Univ. of New Mexico Inst. of Pub. law, An Empirical Study of the Effects of Race and Gender on Small Claims Adjudication and Mediation (1993).

[4] The Politics of Informal Justice: The American Experience (R. Abel ed., 1982); Richard Hofrichter, Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective, inThe Politics of Informal Justice: The American Experience 207, 210 (Richard L. Abel ed., 1982).

[5] Richard Hofrichter, Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective, inThe Politics of Informal Justice: The American Experience 207 (Richard L. Abel ed., 1982).

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DISPUTE RESOLUTION MAGAZINE is published quarterly (4 times a year) by the American Bar Association Section of Dispute Resolution. Dispute Resolution Magazine provides timely, insightful and resourceful information regarding the latest developments, news and trends in the growing field of dispute resolution throughout the world and features internationally-known scholars and practitioners as authors.

Dispute Resolution Magazine Editorial Board

ChairsJoseph B. StulbergThe Ohio State University Moritz College of LawColumbus, OH

Nancy A. WelshThe Dickinson School of Law of the Pennsylvania State University Carlisle/ University Park, PA

Chair EmeritusFrank SanderCambridge, MA

MembersJames CobenHamline University School of LawSt. Paul, MN

Howard HermanSan Francisco, CA

Bennett G. PickerStradley RononPhiladelphia, PA

Effie D. SilvaMcDermott Will & Emory LLPMiami, FL

Donna StienstraFederal Judicial CenterWashington, DC

Zena ZumetaMediation Training & Consultation InstituteAnn Arbor, MI

EditorGina Viola Brown

Associate EditorLouisa Williams

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